Party autonomy in cross-border family relations

Prof. Mirela Župan

ELTE Budapest, 24 February 2017

• Unification of substantive law in Europe– long-standing obstacles due to cultural

diversity and different traditions of MS– some compromise reached via soft law (CEFL)

• Unification of private international law – easier way to go on international and EU level– core of the problem is to find the most

appropriate connecting factor for applicable law / criteria for jurisdiction

– Party autonomy becomes a fundamental principle of EU family PIL, due to• increasing mobility within EU• more flexibility in substantive law • raise of human rights notions • raise of a right of self termination of a person• uncertainity in application of criteria of habitual

residence

- Manifestation of party autonomy in family PIL • Choice of law (or optio iuris)• Choice of court • „Evasive mobility”

INCIDENCE OF PARTY AUTONOMY IN EU FAMILY PIL:

CHOICE OF FORA – CHOICE OF LAW

Legislative procedure in EU leads to • multispeed Europe• sector specific regulations • variations in application of criteria for

jurisdiction / applicable law• incompatibility of various regulations

symultaniously applicable to a case

..... Varous scope of application Multi-speed Europe

TEMPORAL GEOGRAPHI

CAL

MATERIAL METHOD OF

UNIFICATION

Reg.

No.

2201/

2003 (Brussels II

A)

-as of

1.3.2005

-Croatia as

of 1.7.2013

all MS of the

EU, except

Denmark

- divorce- legal

separation- marriage

annulment- parental

responsibility

jurisdiction,

cooperation,

recognition,

enforciability,

enforcement

Reg. No.

1259/2

010

(Rome III)

-as of

21.6.2012

-enhanced

cooperation

-14

participating

MS

- divorce

- legal

separation

applicable law

..... Varous scope of application Multi-speed Europe

TEMPORAL GEOGRAPHICAL MATERIAL METHOD OF

UNIFICATION

Reg. no

4/2009

-as of 18

June 2011

-for Croatia

as of

1.7.2013.

-all MS of the EU,

except Denmark

- specific rules for

UK

maintenance

obligations

jurisdiction,

cooperation,

recognition,

enforciability,

enforcement

Hague

protocol of

2007

-as of 18

June 2011

(proviosional

application

in EU)

-international

convention

integrated to EU

regulation!

maintenace

obligations

applicable law

..... Varous scope of application Multi-speed Europe

TEMPOR

AL

GEOGRAPHI

CAL

MATERIAL METHOD OF

UNIFICATION

Reg. no.

2016/1103

-as of 29

January

2019

-enhanced

cooperation

-18

participating

MS

matrimonial

property

jurisdiction,

applicable law,

cooperation,

recognition,

enforciability,

enforcement

Reg. no.

2016/1104

-as of 29

January

2019

-enhanced

cooperation

-18

participating

MS

property of

registered partners

jurisdiction,

applicable law,

cooperation,

recognition,

enforciability,

enforcement

Delimitation among legal sources

with respect to regulations

BIIbis – Maintenance

notion of “ancillary

matter”

– CJEU A v B.

(C-184/14)

with respect to national law / matters outside the scope of EU regulation

Representation

CJEU Gogova v lliev(Case C-215/15)

Successions

– CJEU Matouškova

(C-404/14)

How does the complexity of the system reflects to party autonomy issues?

• Prorogation of court in parental responsibility matters Brussels IIa

• Applicable law on divorce Rome III

• Prorogation of court in maintenance disputes Maintenance regulation

• Applicable law on maintenance Hague Protocol

• Prorogation of court and applicable law for matrimonial property /registered partners property MP/ RP regulation 2016

- Application of party autonomy in a typical family dispute setlement (divorce + maintenance + matrimonial property)

• Prorogati fori for divorce not allowed• parties have a variety of fora's on disposal

• Optio legi for divorce allowed• only for Rome III participating MS, otherwise depends on

national law • Prorogatio fori for maintenance allowed (except child)• Optio legi for maintenance allowed

• but only for states obliged by Hague protocol of 2007, otherwise depends on ntional law

• Prorogatio fori for matrimonial property• only for states participating in MP/RP regulation, otherwise

depends on national law • Optio legi for matrimonial property

• only for states participating in MP/RP regulation, otherwise depends on national law

- Atomized approach of EU civil justice results with mosaic of legal regimes to be applied in one case various prescriptions on party autonomy, in respect

of: – limitations ex ante

» Limited list of possible laws to opt for differs in regulations / problems with application of habitual residence / nationality / lex fori

» limitations that serve protection of weaker party » assurance that we have a true consent via rules on

informed / additional formal requirements on validity» Capacity of a epresentative acting in a child related

procedure – CJEU (L v M C-656/13;Googova C 215-15)

..........

.......

• Limitations ex post – international mandatory rules

• novelty of family home in property regime– public policy exception

• material validity rules • formal validity rules

• autonomy of international couples –pro’s

– takes account of legitimate interests of cross-border couples

– empowers European citizens to an enhanced participation in integration process

– chosen legal systems is usually one familiar to parties • they are aware of prescribed rights and obligations• from an economic perspective spouses have

calculated relevant costs of matrimonial property division /maintenance obligations

...........- reduces legal uncertainty and unpredictability

- if default rules would apply for any of the related matters (maintenance, divorce..) one faces complex variations of applicable law, cascade of connecting factors, layers of habitual residence etc.

- avoids forum shopping phenomen- party autonomy in the choice of law act as a remedy

- it balances the lack of uniform approach to the conflict-of-law problems

- if autonomy is given in parallel for choice of court / choice of law it can result with application of domestic law- preferable for procedural efficiency

- attribute of fundamental rights - informal choice is granted to European citizens

with two nationalities, where a person can choose the nationality that would prevail (Garcia Avello)

- in respect of substantive law harmonization party autonomy in PIL could lead to convergence of laws

- optio iuris fosters competition among states- paradigm of regulatory competition implies

lawmakers are forced to revise their laws to ensure they offer an attractive product (but it could lead to disappearance of legal traditions)

- autonomy of international couples –contras

- Regulations are not coordinated- parties can make choices on fora/law for maintenance; for

a for parental responsibility but they cannot choose fora for divorce!

- list of potential fora/law to be chosen is not parallel and does not corresponds through all of these regulations

- list of laws to be chosen - can deprive spouses of choosing applicable law that

suits them most- in matrimonial property - if further choice of law for

immovable is lex situs, depecage is envisaged in matrimonial property settlement

- optio iuris of religious laws of Third countries with no equality of spouses - public policy is a safeguard of European human rights

standards - CJEU Case C-281/15

..................

- adequate protection must be assured for - rights of third persons who are involved in

proprietary transactions - financially weaker party

- in respect of substantive law harmonization

– it could freeze or promote differences among laws

• in majority of MS no legal culture to use choice of law exists

• if choice of law is employed under numerous legal sources without specialized counsel – person may end up with uncoordinated

choices (egz. choice of different national laws in different context)

– such multiple choices can imperil the balance achieved within one national family law system

– such multiple choices can have negative effects on operation of the authority that is called upon to settle the case

INCIDENCE OF PARTY AUTONOMY IN EUROPEAN FAMILY RELATIONS

- REVIVAL OF VESTED RIGHTS THEORY?

• Human rights have become a generator of promotion of autonomy in cross-border family relations

• HR could promote „legal tourism“ (marriage tourism/ divorce tourism/birth tourism)

• creation of a law market - generation of European market of „family law products“?

Promotion of autonomy by major European courts

• EHCR acts a significant role / CJEU of minor influence

– Wagner vs Luxembourg ECHR (international adoption)

– Menneson vs France ECHR (international surrogacy)

– Paradisso vs Italy ECHR (international surrogacy)

ECHR (personal name)

• Stjerna vs Finand, of 25.11.1994., no.18131/91

• Johansson vs Finland of 6.9.2007.no.10163/02

• Ünal Tekeli vs Turkey of 6.11.2004. no.29865/96

CJEU (personal name)

• C- 148/02, Garcia Avello, ECLI:EU:C:2003:539

• C- 353/06, Grunkin - Paul, ECLI:EU:C:2008:559

• C-438/14, Nabiel Peter Bogendorff von Wolffersdorff protiv Standesamt der StadtKarlsruhe, Zentraler Juristischer Dienst der Stadt Karlsruhe, ECLI:EU:C:2016:401

• Are befits of party automony acknowledged by doctrine transposed to practice?

• Is the party autonomy prescribed with current EU PIL sufficient safeguard of European citizens?

• Is the labirint of interrelated EU acts applicable by international couples?

• Is the peculian human rights promotion of autonomy agresive towards national substantive family law?

THANK YOU FOR YOUR ATTENTION!

Mirela Župan, PhD, Associate ProfessorHead of Chair for Private International LawJean Monnet Chair on Cross border movement of a child in EU –holderJean Monnet Chair for EU Procedural Law - teacherDirector of the PhD Programme in Law

Pravni fakultet u Osijeku / Faculty of Law OsijekS. Radića 13, 31 000 Osijek Croatia++ 385 31 224 500 mzupan@pravos.hr